Two unanimous decisions

MARY REICHARD, HOST: Coming up next on The World and Everything in It: Two opinions from the US Supreme Court handed down last week.

First, a unanimous ruling that reaffirms the First Amendment does not permit the government to coerce others into suppressing protected speech.

LINDSAY MAST, HOST: Justice Sonia Sotomayor wrote the unanimous opinion that says the NRA— the National Rifle Association— may proceed with its First Amendment lawsuit against Maria Vullo. She is the former overseer of the New York state department of financial services. She told insurance companies and banks to part ways with the NRA.

REICHARD: Cato Institute is a libertarian think tank that filed an amicus brief in support of the NRA. I spoke to Walter Olson who is a senior fellow with the organization.

OLSON: What New York was trying to do indirectly was something that it would certainly have been struck down for doing directly, namely, to legally penalize the National Rifle Association, not for technical insurance breaches…. but for its advocacy… And that's a fact pattern that has not reached the Supreme Court before. And it's a very important one, because it goes on, unfortunately, a lot these days where governments seek to regulate indirectly, by taking regulated industries like banks and insurance and turning them against the actual targets of the regulation.

MAST: The ruling will likely have a big effect on disputes still pending:

OLSON: Where it is going to have its big impact is in another set of issues that the Supreme Court will be looking at later this term. Also having to do with indirect regulation, and those usually involve social media. And the idea there is that...Washington may give a call to a social media platform or some electronic intermediary, saying, “Hey, we think there's a bad actor here, maybe you don't want to carry their accounts or you don't want to carry their data over your lines, or whatever”. And that can be very hard to detect. And it's also not entirely clear where the legal ones are on that. Now, NRA versus Vullo, lays out strong lines saying, Look, even if you can put together some sort of regulatory justification based on other ways you regulate businesses, we're going to look at what you're really doing.

MAST: And here, what the state official is plausibly alleged to have done… is target speech:

OLSON: The line that the Court drew in Vullo is, it's okay for the government to talk. It's okay for the head of the superintendent of financial regulation in New York, to express her opinion saying, "I think the NRA is, you know, terrible…..So long as it's just speech the courts will not step in. But when it reaches coercion, and there was a lot of evidence that the NRA put it in this case, that the speech had lapsed over into coercion, where she was telling Lloyds and other insurance companies, look, you will get a worse deal on unrelated regulatory issues unless you do what I say. Classic coercion.

MAST: And Olson sees further importance of this 9-0 decision:

OLSON: In part that reflected the fact that this had been a case so outrageous that it in fact, had united a number of groups across the ideological spectrum. The American Civil Liberties Union, which does not usually side with the NRA, did in this case, saying, "Look, this is outrageous. We can't have this happen to any group." And so, in that respect, it wasn't as surprising. Nonetheless, getting all nine members of the Supreme Court to agree on the reasoning, getting a strong statement that without some attempt to undermine it, or make it for this case only, that's significant.

MAST: This case now returns to lower court for further analysis.

REICHARD: Next is another 9-0 opinion in the case of Cantero versus Bank of America. The issue was whether federal law preempts a New York law that requires a bank to pay borrowers interest that accrues on mortgage escrow accounts.

The justices rejected a bright-line standard to clarify whether the federal law does that. Instead, they sent it back to lower court to analyze whether New York’s interest-on-escrow law is preempted as applied to national banks in a way that’s consistent with other federal law and court precedent.

MAST: Meaning, the lower court must do a practical assessment of how much interference with national banking occurs when a state regulation “significantly interferes” with how national banks operate.

REICHARD: This decision disappointed those looking for clear direction on the matter, so expect to see it again.

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